6.  The applicant was born in 1978 and lives in Budapest.
7.  On 8 May 2007 the Hungarian Guard Association (Magyar Gárda Egyesület – “the Association”) was founded by ten members of the political party Movement for a Better Hungary (Jobbik Magyarországért Mozgalom) with the stated aim of, inter alia, preserving Hungarian traditions and culture.
8.  In its turn, on 18 July 2007 the Association founded the Hungarian Guard Movement (Magyar Gárda Mozgalom – “the Movement”). The Bureau of the Association stated that it had decided to “create the Hungarian Guard, first operating it as a movement but later attempting to integrate it into the Association as a section”. It was also decided that “in order to integrate the Hungarian Guard into the Association, [the latter’s current] charter need[ed] to be amended ... by 10 October 2007”.
The Movement’s objective was defined as “defending a physically, spiritually and intellectually defenceless Hungary”. The tasks undertaken by the Movement, as listed in its deed of foundation, included the physical and psychological training of its members, participation in disaster management and in ensuring public safety, as well as the initiation of a social dialogue regarding these issues through public events.
9.  On 4 October 2007 the Budapest public prosecutor’s office addressed a notice to the Association calling on it to terminate its unlawful activities. It was noted that the Association had carried out activities that were not in accordance with its aims as defined in its charter. In particular, it was observed that on 25 August 2007 it had organised the swearing-in of fifty-six “guardsmen” in Buda Castle. Subsequently, the Association had conducted a national campaign aimed at popularising tasks defined for the Movement which were not in accordance with the aims of the Association. It was noted that certain aims of the Movement were not amongst those defined for the Association, nor were they in conformity with the Association’s cultural and tradition-preserving nature.
On 9 November 2007 the applicant, as chairman of the Association, notified the public prosecutor’s office that the unlawful activities had been terminated by deleting the impugned part from the Movement’s deed of foundation, and that he had initiated the amendment of the Association’s charter. Accordingly, on 7 December 2007 the General Assembly of the Association had decided to add the following provision to paragraph 2 of its charter: “(f) In accordance with its name, the Hungarian Guard Association has the aim of engaging in dialogue with society and of holding public events and gatherings for citizens on issues affecting their security, such as disaster management, national defence and life-saving techniques.”
10.  Purportedly in pursuit of these goals, members of the Movement dressed in uniform subsequently held rallies and demonstrations throughout Hungary, including in villages with large Roma populations, and called for the defence of “ethnic Hungarians” against so-called “Gypsy criminality”. These demonstrations and rallies were not prohibited by the authorities.
One of these demonstrations, involving some 200 activists, was organised in Tatárszentgyörgy, a village of around 1,800 inhabitants, on 9 December 2007. The police were present and did not allow the march to pass through a street inhabited by Roma families.
11.  In reaction to this event, on 17 December 2007 the Budapest Chief Prosecutor’s Office lodged a court action seeking the dissolution of the Association. The action was based on the Association’s alleged abuse of the right to freedom of assembly and the fact that it had conducted activities which infringed the rights of the Roma by generating fear among them through speeches and appearance, that is to say, by the activists wearing uniforms, marching in formation and issuing military-style commands.
The Chief Prosecutor’s Office was of the view that the Movement constituted a division of the Association, and that its activity in fact represented a significant part of the latter’s activities. It argued that the Movement was not a “spontaneous community”, in that its members were all registered, and stressed that it had been created by the presidency of the Association, that applications for membership were assessed by the Association and that its uniform could be bought from the Association.
12.  In the ensuing proceedings the Association claimed, however, that there were no organisational ties between itself and the Movement of a kind amounting to a unity of the two; accordingly, it argued that it bore no responsibility for the Movement. It also stated that, in any event, the Movement’s activities did not present any objective danger to anyone. According to the Association, a subjective feeling of fear could not give rise to any limitation on fundamental rights, including freedom of assembly; the Movement’s conduct had not been intimidating if regarded objectively.
13.  After holding four hearings the Budapest Regional Court ruled in favour of the Chief Prosecutor’s Office on 16 December 2008 and disbanded the Association under section 16(2)(d) of Act no. II of 1989 on the right to freedom of association (see paragraph 18 below).
The court did not accept the arguments concerning the distinction between the two entities and held that a “symbiotic relationship” existed between them. It held that the principal activity of the Association had been the founding, operation, guidance and financing of the Movement, observing, inter alia, that the Movement received donations through the Association’s bank account. The legal effect of the judgment was nevertheless limited to the dissolution of the Association; since, in the court’s view, the Movement did not have any legal personality, the judgment did not directly extend to it.
As regards the assembly in Tatárszentgyörgy, the Regional Court held as follows:
“The essential purpose of the event was indeed to place the spotlight on ‘Gypsy criminality’. The use of this generalisation, clearly based on racial and ethnic grounds, violated the principle of equal human dignity ... Moreover, this was not a one-off occasion ... [The Movement] based its programme on discrimination between people and expressed it by way of marches in several cases; this amounted to a demonstration of power and to threatening others through the appearance [of the participants in the marches]. ... The court is of the opinion that, from a constitutional point of view, to raise fear, virtually as a mission, is unacceptable as an aim or role.”
14.  The court noted that the participants, who were uniformed, had worn armbands quite similar to those of officers of the Arrow Cross (responsible for the reign of terror in Hungary in 1944/45). It took the view that marches with participants dressed in this way were objectively capable of wounding “historical sensitivities”.
The court went on to declare that, despite the Association’s stated purpose, its actions had violated Hungary’s laws on associations and created an atmosphere of anti-Roma sentiment. According to the court, the verbal and visual demonstration of power alone amounted to an infringement of the law, in the light of historical experience; thus, for the Association to be dissolved it was not necessary for it to have committed an actual offence: the fact that its programme encompassed discrimination amounted to prejudicing the rights of others within the meaning of section 2(2) of Act no. II of 1989 (see paragraph 18 below).
15.  On 2 July 2009 the Budapest Court of Appeal upheld the judgment of the Regional Court. It also considered two further similar demonstrations staged by the Movement, in the village of Fadd on 21 June 2008 and in the village of Sárbogárd on an unspecified date. The Court of Appeal noted that the speeches given by Movement members in the course of the Fadd rally had contained numerous remarks aimed at the exclusion of Roma. As to the Sárbogárd event, the Court of Appeal observed that there had been several anti-Semitic utterances.
This court established a closer connection between the two entities, extending the scope of its judgment also to the Movement. It held that the Association in fact included the Movement as a “unit”; consequently, the judgment concerned both of them. The Association’s dissolution also dismantled the organisational framework of individuals operating within any movements related to the dissolved association.
The court ruled that the choice of locations for the demonstrations, that is, villages with large Roma populations, could not be seen as social dialogue, but as an extreme form of expression in the context of a quasi‑military demonstration of force consisting of the cumulative effects of military-style uniforms, formations, commands and salutes. The Court of Appeal, while it upheld in essence the arguments of the Regional Court, argued that the population of the villages had been subjected as a “captive audience” to these extreme and exclusionist views without being able to avoid receiving them. In the court’s view, the events organised by the Movement constituted a risk of violence, generated conflict, breached public order and peace and violated the right to liberty and security of the inhabitants of the villages, despite the fact that all the demonstrations, which were tightly controlled by the police, had finished without any acts of actual violence.
The court also considered the applicant’s freedom of expression. It stated, upholding the arguments of the first-instance judgment and citing the case-law of the Court, that this freedom did not cover hate speech or incitement to violence.
16.  On 15 December 2009 the Supreme Court upheld the judgment of the Budapest Court of Appeal. It endorsed the Court of Appeal’s finding that the Movement was in fact an entity within the Association. It also agreed with the lower courts as to the necessity of disbanding the Association, pointing out that the Movement’s rallies had caused situations of conflict whose protagonists might potentially have had recourse to violence.
This decision was served on 28 January 2010.